Is Sri Lanka ready for federalism?

by Anna Fareena

The approach used by many developing nations for dealing with the issue of ethnic minorities could be described in terms of the "accommodation without assimilation" model, where on the one hand, the minority members are expected to accommodate themselves to the mainstream, dominant culture while maintaining their own culture, and on the other, the center of power is expected to accommodate itself to the needs of disadvantaged minorities by granting them special economic, political and cultural rights in order to address inequities.

Such a policy, however, may lead to perpetual competition between the majority and the minority communities, or to a backlash by the dominant group, thus creating communal tensions, which may result in violent ethnic conflict.

This is precisely what happened in Sri Lanka, with communal tensions between the Sinhalese (majority group) and the Tamils (largest minority group) erupting into a brutal 20-year civil war in the North and East.

Although the ceasefire agreement signed between the (UNF) Government and the LTTE in February 2002 is still in force, the peace talks have faltered because the LTTE is demanding far more in terms of regional autonomy than the center is prepared to give in the context of a federal arrangement.

The crux of the problem is how far Sri Lanka is prepared to go with devolution (without violating the principle of territorial integrity and national sovereignty) and what model of power-sharing between the center and the North-East is acceptable to the Sinhalese and the Tamils, as well as the Muslims, who, although they are a smaller group than the Tamils, comprise a significant proportion of the population in the Eastern province. For instance, they are the largest ethnic group in Ampara district (around 42%).

The "accommodation without assimilation" model has failed in Sri Lanka due to deep political cleavages in this country and serious differences in the culture, identity and interests between the majority and minority ethnic groups. Sri Lankan society is therefore more likely to hold together through a consociational, or power-sharing system of government, which seems to be the only viable alternative to a partitioning of the island into two separate states.

Consociation

Consociation is a political system formed by the cooperation of different, especially antagonistic, social groups on the basis of shared power. Its immediate aim is to turn a society with a fragmented political culture into a stable democracy and to maintain the national unity. It has been implemented with remarkable success in the Netherlands, Switzerland, Austria, Colombia, and Malaysia, and with a satisfactory degree of success in Belgium.

In order for constitutionalism to be implemented successfully, (a) the political leaders from the rival segments should have the ability to accommodate the divergent interests and demands of their own community and they must have an effective control over it; (b) they should be able to transcend cleavages and work jointly to cooperate to a great extent with the elites of the rival segments; (c) they should be committed to the continuance of the system and to its stability; and (d) the elites should understand the perils of political fragmentation.

Federalism

The term federalism describes a mode of political organization that unites separate states or other polities within an overarching political system in such a way as to allow each to maintain its own fundamental political integrity. A federal structure may increase the effectiveness of consociational politics, provided all members can share in making and executing decisions.

In Sri Lanka, a future federal-consociational arrangement should not permit the largest ethnic minority (the Tamils) to dominate the second largest ethnic minority (the Muslims), since it will serve only to violate the principle of democratic pluralism and perpetuate the legacy of communal hatred and ethnic strife.

The political principles that animate federal systems emphasize the primacy of bargaining and negotiated coordination among several power centers; they stress the virtues of dispersed power centers as a means for safeguarding individual and local liberties.

The importance of the federal-consociational system as political and legal arrangements lies in its proven ability to tackle the danger of partitioning of a country to smaller entities.

In Switzerland, for example, we would imagine how ethnic, linguistic and religious factors could have resulted in the creation of many smaller independent countries, yet the social contract among the Alpine populations has led to a federal-consociational unity after the country underwent many experiences and stages like the confederation stage, the alliance stage, and the crisis stage. The Alpine people learnt through trial and error that federalism is the wholesome and ideal solution for them.

Characteristics of federalism

A universal characteristic of any federal system is what has been called in the United States territorial democracy. Territorial neutrality has proved highly successful in societies that are changing, allowing for the representation of new interests in proportion to their strengths simply by allowing their supporters to vote in relatively equal territorial units.

At the same, the accommodation of very diverse groups whose differences are fundamental rather than transient by giving them territorial power bases of their own has enhanced the ability of federal systems to function as vehicles of political integration while preserving democratic government. One example of this may be seen in Canada, which includes a population of French descent, centred in the province of Quebec.

A second universal characteristic of the federal system is the existence of direct lines of communication between the citizenry and all the governments that serve them. The people may and usually do elect representatives to all the governments, and all of them may and usually do administer programs that directly serve the individual citizen.

This arrangement is usually based on a common sense of nationality binding the constituent polities and people together. In some countries this sense of nationality has been inherited, as in Germany, while in the United States, Argentina, and Australia it had to be at least partly invented. Canada and Switzerland have had to evolve this sense in order to hold together strongly divergent nationality groups.

A third universal characteristic of the federal system is noncentralization, which is to say that the system is based on diffusion of power among a number of substantially self-sustaining centers.

Noncentralization is a way of ensuring that in practice the authority to participate in exercising political power cannot be taken away from the central or the state governments without common consent.

To maintain noncentralization, the constituent polities in a federal system must be fairly equal in population and wealth or else balanced geographically or numerically in their inequalities. In the United States, each geographic section has included both great and small states.

In Canada, the ethnic differences between the two largest and richest provinces have prevented them from combining against the others. Swiss federalism has been supported by the existence of groups of cantons of different size categories and religiolinguistic backgrounds. Similar distributions exist in every other successful federal system.

Perhaps the single most important element in the maintenance of federal noncentralization is the existence of a noncentralized party system. Noncentralized parties initially develop out of the constitutional arrangements of the federal compact, but once they have come into existence they tend to be self-perpetuating in their own right.

A fourth universal characteristic of any federal system is the embodiment of the federal relationship in a written constitution that outlines the terms by which power is divided or shared; the constitution can be altered only by extraordinary procedures.

In Australia, each state has its own constitution in addition to the federal constitution. The fact that each state has its own constitution regulating its own parliament, executive and courts means that the Australian constitution says more about the commonwealth than the states. In particular, much of the Australian constitution deals with the parliament, executive and courts of the commonwealth.

Nevertheless, the Australian constitution regulates the state's relationship with the commonwealth, and to some extent, the state's relationship to the people of that state and other states.

The states are bound by the Australian constitution, and the constitution of each of the states must be read subject to the Australian constitution. What this means is that if the constitution of a state says one thing and the Australian constitution says another, it is the Australian constitution that must be obeyed.

A significant difference between the state constitutions and the Australian constitution is that many of the provisions of a state constitution may be changed or repealed by an act of the state parliament. By contrast, the Australian constitution may be changed only by the procedures set out in section 128 of the constitution, which requires, among other things, a referendum of the people.

A federal system is based on a constitutional process that is a very important means used by a legislative council/parliament to bring deviating governments into line. Here it is worth noting that an independent judiciary plays a crucial watchdog role in ensuring that state and central government decisions and legislations are in accordance with the constitution.

The judiciary in a federal system is also the body that two conflicting states within a country would go to for arbitration and settlement. Because such conflicts would not be resolved by diplomacy (for the states in question would be part of one sovereign country), administrative hierarchy could not resolve them since the states would be autonomous from the central/federal government.

The Oslo statement

Federalism may be the solution to the ethnic conflict in Sri Lanka as it represents the only guarantee to establish genuine democracy that includes the principle of sharing power and wealth. It is interesting to speculate how its post-colonial history would have evolved had the proposed Bandaranaike-Chelvanayagam Pact of 1957 to establish a federal system in the island been implemented.

Once again Sri Lanka is under pressure to go the federal route. At the third session of peace talks between the Government and the LTTE held in Oslo, Norway on 2 to 5 December 2002, the parties agreed to explore a solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil-speaking peoples, based on a federal structure within a united Sri Lanka. The parties acknowledged that the solution had to be acceptable to all communities.

The President recently sought a commitment from the LTTE that the interim arrangement as well as the final solution should be based on the Oslo Statement. The Government has therefore sent a clear signal to the LTTE to honour the Oslo Agreement, which has been lying dormant for over two and a half years.

Interim Self-Governing Authority (ISGA)

In October 2003 the LTTE submitted a proposal for an agreement to establish an Interim Self-Governing Authority (ISGA) in the North and East, which by and large is not acceptable to the Government. The problem facing the center is that the power-sharing arrangement outlined in the ISGA proposal (which has been posted on the Internet) is more in the nature of a confederation than a federation.

A confederation (broadly speaking) is a federal system of government in which sovereign constituent governments create a central government but balance of power remains with constituent governments. For example, in Switzerland, the federal constitution (adopted in 1848 and revised in 1874) assigns specific functions, notably communications, foreign relations, and tariffs, to the confederation (federal/central government), leaving the cantons (constituent governments) sovereign in other respects. The LTTE model is tilted even more towards regional autonomy than the Swiss model.

Asymmetric federalism

The ISGA model is an example of asymmetric federalism - a system of government in which powers are unevenly divided between provinces, i.e., some provinces (in this case the North and East) have greater responsibilities or more autonomy than others. Some federations (such as Belgium, Canada, Spain, Russia, India and Malaysia) have opted for the asymmetric form of federalism, thereby granting certain national groups true autonomy. The asymmetry varies from country to country with the division of powers being based on the realities of each federation.

In most federal systems, constituent units are considered to be equal and have the same legislative powers. However, the constitutions of certain federations provide for an asymmetric division of powers in order to reflect the differences among their constituent units. These differences can be territorial, demographic, linguistic, cultural or religious.

There are two main forms of asymmetric federalism. One approach consists of increasing the federal government's authority in regions where the state's capacity to exercise legislative authority is less advanced or is temporarily undermined. In such cases, the federal government may take over until the state is in a position to exercise its authority. Such was the case in India where, for the first six years of the Union, the federal government assisted certain less developed states until they were able to exercise their own legislative power.

The second, and more common, approach to asymmetric federalism involves giving one or several states more autonomy. The Malaysian system is one of the best illustrations of this approach. Although it has a highly centralized system of government, Malaysia has given the states of Sabah and Sarawak powers that normally fall under federal jurisdiction.

These Bornean states have considerably more autonomy than the 11 other states in areas such as taxation (in particular customs and excise), immigration and citizenship, trade, transportation and communication, fisheries and several social affairs sectors. The aim of this approach is to protect the distinctive characteristics of the two states and their interests.

Problems with the ISGA

The LTTE proposal, viewed in its entirety, is designed to transfer most of the executive and legislative powers of the central government to the ISGA and to empower the LTTE to control the ISGA though majority rule.

For example, Clause 9.1 states: "The ISGA shall have plenary power for the governance of the North East, including powers in relation to resettlement, rehabilitation, reconstruction, and development, including improvement and upgrading of existing services and facilities (herein referred to as RRRD), raising revenue including imposition of taxes, revenue, levies and duties, law and order, and over land."

The proposed transfer of power extends to such areas as defense, justice, administration, fiscal policy, accounting and auditing of funds, foreign relations, land alienation, resettlement, and control of natural resources, including marine and offshore resources.

Under the present constitution, the center does not have the authority to transfer most of these jurisdictions to the periphery. A further problem is that there are no adequate safeguards in the ISGA proposal for the Sinhalese and Muslims living in the North and East.

To be continued